David Dobrin (of The Applicator fame) wrote recently on the topic of brittle applications. He defines a brittle application as “one that doesn’t work unless a lot of disparate conditions are met.” In thinking about his description of MS-Word, I was struck by the concept that many contracts I encounter are brittle as well.
To illustrate my point, think about the last contract you reviewed. Did it have a definition section? How about references to external documents (a spec list, a set of documentation, a “missing” Exhibit or Appendix)? Was it full of cross-references or have noticeable gaps (such as missing language for standard terms)? Was the contract obviously written for a different type of product or service? In all of these situations, I believe you have a brittle contract.
Contracts are “incorporated” documents. This means that all of the various sections have to work and play together to form a cohesive end-product. When you’ve identified gaps, errors or problems, these mistakes can cause cascading failures throughout the entire agreement. A poorly-defined term, for example, could ripple through the contract, causing errors in judgment regarding expectations, or could even create legal problems with regards to intellectual property. In other words, the poorly-defined term doesn’t hurt itself, it hurts the entire document.
The same is true for commonly overlooked sections on subjects such as term, termination and scope. When a lack of attention results in an incomplete picture of the relationship, the net impact can be extremely detrimental (ever had a perpetually-renewing contract for poor services that was hard to get out of because termination was only for breach, yet the services weren’t defined well enough to hold the vendor to performance standards? I have.).
You can also look at brittle contracts from another perspective, one my friend D.C. Toedt might appreciate. D.C. seems to love language portability – drafting contract sections that can be used in a plug-and-play format to craft the appropriate document (you should check out some of his work in his clause library). This type of drafting is a part of the holy grail of contracting – the complete automation of the contract creation process based on a wizard-style interface which asks questions and assembles an appropriate finished product from such a library of contract clauses.
The inherent problem with document assembly is brittleness – that you insert a clause into the agreement that has to properly “work” with all of the other sections. If the clause has a faulty cross-reference, for example, the contract breaks. On the flip-side, however, document assembly fixes one of the aforementioned brittleness issue with current contracts – having a completely appropriate document for the specific product or service being offered under the agreement.
So… how brittle are your contracts (especially your templates)?